E-2 Treaty Investor Visas

Posted November 11, 2011

I.N.A. §101(a)(15)(E)

E-2 Treaty Investor visas are available to persons entering the United States “solely to develop and direct the operations of an enterprise in which s/he has invested, or is actively in the process of investing, a substantial amount of capital.”  At least 50% of the ownership of the enterprise must be in the hands of nationals of a country with which the U.S. and the home country have a ratified bilateral investment treaty (see the current list of E-1 and E-2 treaty signatories here).  Employees of the enterprise who are working in management, executive or “essential” positions are also eligible for E-2 visas if the ownership breakdown meets the above test.

Some of the more important requirements for an E-2 visa include the following:

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Legal Requirements for Issuance of a B-1/B-2 ‘Visitor’ Visa

Posted November 11, 2011

Under section 214(b) of the INA, “every alien (other than a nonimmigrant described in subparagraph (h)(i) or (L) of section 101(a)(15) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a nonimmigrant visa, and the immigration officers, at the time of application for admission, that he is entitled to nonimmigrant status under section 101(a)(15).”

How does one prove “bona fide non-immigrant intent”?

Because there are such a high number of applications for short-term business and tourist visas in comparison to the rest of non-immigrant visa categories, the issue of immigrant intent is more closely scrutinized for B visa applicants.  The State Department has specified five general requirements for issuance of a B visa to a foreign national.  These requirements are rarely waived:

  1. The alien is entering the U.S. for a limited duration;
  2. The alien intends to depart the U.S. at the expiration of his or her stay;
  3. While in the U.S., the alien maintains a foreign residence which he or she has no intention of abandoning;
  4. The alien has adequate financial arrangements to travel to, travel within, and depart from the U.S.;
  5. The alien will only engage in limited activities relating to business or pleasure.

For typical employees of established and large or recognizable companies who intend to engage in productive business activities, a letter from the company setting forth a legitimate business reason, setting specific dates during which business will be conducted, and including supporting documentation of the trip arrangements, will usually adequately demonstrate bona fide non-immigrant intent.  Generally, detailed statements from large employers (called ‘affirmations’) are sufficient to show bona fide non-immigrant intent.

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L-1 Nonimmigrant Visa Basic Requirements

Posted November 8, 2011

INA § 101(a)(15)(L), 8 CFR § 214.2(l)

An Intracompany Transferee. . .

The employee must have worked abroad for the foreign company for a continuous period of ONE YEAR in the preceding THREE YEARS.

. . . between qualifying companies. . .

The foreign company for which the employee has worked for at least one year abroad must possess shared ownership with the sponsoring U.S. company in a specific manner recognized by U.S. business laws.

. . . during the entire period of stay in the U.S. . .

Both foreign and U.S. companies must be qualifying organizations that are actively engaged in business during the ENTIRE PERIOD of employee assignment to the U.S.

. . .who was employed abroad in a specialized capacity. . .  

The employee to be transferred must have been employed abroad in an EXECUTIVE or MANAGERIAL position (L-1A) or a position requiring SPECIALIZED KNOWLEDGE (L-1B).

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Posted November 3, 2011

WELKOM – BIENVENUE – 歓迎 – Добро пожаловать – Υποδοχή – Willkommen – 환영 – BENVENUTO

 

Visas and Status, Generally

Time is an elemental concept of the U.S. immigration system. For foreign visitors, the two words most often preceding an immigration question are “how long. . . ?” This is a pertinent inquiry, as a visa and one’s visa ‘status’ in the United States, although distinct in form, are alike in one important respect: both can expire at any given time based on complex rules intended to govern the foreigner’s actions within the country. Conversely, one may expire while the other remains valid. This layered permission aspect of U.S. immigration can and often does cause confusion and problems.

If you are a foreigner physically present in the United States, it is important to distinguish your status from your visa. The visa in your passport is much like a ticket, or a license, which, if granted (usually by a U.S. consulate or embassy abroad) merely allows you to apply for admission at a U.S. port-of-entry, under assumed qualifications based on your expressed intent in applying for the visa. A visa allows this application at the port-of-entry, but does not guarantee your lawful presence in the United States after entry. Your ability to maintain lawful presence in the United States under a particular visa category (B-2, J-1, H-1B, etc.) is governed after entry by rules related to your actual ‘status.’

If you are in the U.S. temporarily, such as a temporary worker, student, or visitor for business or pleasure, you possess non-immigrant status.  If you are in the U.S. with the intent of eventually obtaining permanent residence, you possess immigrant status.  Status, as such, is the initial focal point for legal analysis related to any foreigner’s current immigration circumstances and goals moving forward.

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